(10 Utah, 60) ANDERSON PRESSED-BRICK CO. v. DUBOIS et al. (Supreme Court of Utah. June 4, 1894.) DISMISSAL OF APPEAL-DEFECTIVE RECORD. Where the abstract on appeal is in disregard of the rules of the court, and does not show that any motion for a new trial was made, nor that any appeal is taken from the judgment, the court will dismiss the appeal on its own motion. Appeal from district court, Weber county; before James A. Miner, Justice. Action by the Anderson Pressed-Brick Company against Dubois & Williams and others. From a judgment for plaintiff, defendants appeal. Dismissed. John W. Judd, for appellants. Evans & Rogers, for respondent. PER CURIAM. The abstract in this case is very imperfect, and in disregard of the rules of this court. It shows the pleadings, verdict, and statement, on motion for a new trial, but it does not appear therefrom that there was any motion made in the trial court for a new trial or any notice of motion given, or that there was a hearing thereon, or any order made by the court in reference to a new trial; nor is there anything in the abstract to indicate that any appeal is taken from the judgment or from any order of the court; nor is there any transcript of the record of the proceedings on file in this court. The proceedings in the case do not sufficiently appear for review. Under such circum stances, this court will dismiss an appeal on its own motion. Comp. Laws 1888, § 3650; Rotch v. Hamilton, 7 Utah, 513, 27 Pac. 694. Considering this case on its merits, however, so far as its history is shown by the abstract, there appears to be no reversible error. The appeal is dismissed. (10 Utah, 54) GROOME v. OGDEN CITY. (Supreme Court of Utah. June 29, 1894.) LEASE-IMPLIED COVENANTS OF TITLE-PAROL EVIDENCE. 1. Plaintiff leased land of defendant, on which were springs, the water from which flowed on the land of W., who had the sole title to the water by original appropriation for irrigation. Held, that the general covenant of title implied by the words "lease and demise," used in the lease, was limited by a covenant that the lessee should quietly keep the premises "without hindrance or molestation from the said lessor, or anybody claiming by, through, or under it," and that plaintiff could not recover for the loss of the use of the water, as W. did not claim by, through, or under it. 2. In the absence of fraud, accident, or mistake, conversations and oral agreements between the parties prior to its execution are not admissible to vary the terms of a written contract. 3. A failure to find facts is not reversible error if, when found, they would necessarily be adverse to appellant, and those already found are sufficient to sustain the judgment. Appeal from district court, Weber county; before Justice James A. Miner. Action by F. O. Groome against Ogden City for damages for breach of contract. Judgment for defendant, and plaintiff appeals. Affirmed. Breeden & Gunnell, for appellant. R. H. Whipple, for respondent. BARTCH, J. This is an action to recover damages for breach of contract. The court entered judgment in favor of the defendant, and, a motion for a new trial having been overruled, the plaintiff appealed, assigning various errors. It appears from the record that on the 30th day of July, 1892, the plaintiff was operating a tannery in the city of Ogden, and on the same day entered into a contract, by the terms of which the defendant demised to him a certain tract of land for a stipulated term. That portion of the contract which is material to the decision of this case, reads as follows: "That the said Ogden City hereby leases and demises unto the said F. O. Groome the following described tracts of land." Then follows the description of the land, the terms, covenants to be performed by the lessee, etc., and then it further provides: "And the said lessor, for itself, its successor, successors, and assigns, does hereby covenant to and with the said F. O. Groome that he shall quietly keep the said premises for the term aforesaid, for the purposes aforesaid, without hindrance or molestation from the said lessor or anybody claiming by, through, or under it; the said lessee well and truly keeping and performing the covenants aforesaid on his part to be performed;" and then follow other provisions. On the land described in the lease there were certain springs, the water of which flowed onto the land of one Weaver, who had appropriated it for the purposes of irrigation many years prior to the date of the lease. After the plaintiff had erected his tannery on the land, Weaver claimed the water, and by order of court restrained the plaintiff from using it. The appellant contends that the use of this water was included in the lease, as appurtenant to the land, and that the words "lease and demise," used in the lease, constitute a warranty of the title, or right of the lessee to let and lease the land and water. If this contention be correct, then the city is responsible in damages, for it is clear that the appellant was dispossessed, as to the use of the water, by one holding a paramount title to that of the respondent. The words "lease and demise" are technical terms, and are frequently used to signify the estate or interest conveyed. They properly apply to the instrument of conveyance, and to prevent a more general unqualified cove nant of warranty by implication in law, an express covenant for quiet enjoyment is fre quently inserted in the instrument, more as a protection to the lessor than to the lessee Such is the case in the instrument under consideration, for it is expressly stated that the lessee shall quietly keep the premises for the purposes therein stated, "without hindrance or molestation from the said lessor, or anybody claiming by, through, or under it." This express covenant limits the generality of the covenant implied in the words "lease and demise," and under such covenant the lessee becomes a purchaser pro tanto, and the maxim of caveat emptor applies. At his peril, therefore, he must ascertain the sufficiency of the lessor's title to the premises, including the appurtenances. In such a case the lessor intends to limit his liability to protect the lessee against injury resulting from defects of title and disturb ances of possession to cases arising because of the lessor's own acts and of the acts of those representing him or claiming under him, and to this the lessee consents by executing and accepting the lease. A qualified Covenant will not be rendered void in law by the more general covenant implied in the words employed in the lease. Wood, in his treatise on the law of Landlord and Tenant, in section 357 (2d Ed.), states the law as follows: "Such covenant may be safely entered into by any lessor who never had any title whatever to the demised premises, or any part thereof; because any subsequent entry, eviction, ejectment, or other interruption or disturbance by the real owner, or by the party entitled to possession, or by any other person who does not claim 'by, from, or under' the lessor, would be no breach of such qualified covenants." Again, in section 359, the same author states: "The usual qualified covenant for quiet enjoyment is frequently inserted more for the protection of the lessor than for the lessee, and to prevent a more general and unqualified covenant being implied by law from the word 'demise,' or any equivalent word, such as 'let' or 'lease.' So in conveyances the usual qualified covenants for title, etc., are introduced 'for the purpose of qualifying the general warranty with the old common-law covenant implied. " See, also, section 358. Tayl. Landl. & Ten. 307; Rawle, Cov. § 275; Burr v. Stenton, 43 N. Y. 462; Deering v. Farrington, 1 Mod. 113; Dennett v. Atherton, L. R. 7 Q. B. 316. Counsel insist that the court erred in rejecting the evidence offered by the appellant, as to conversations, understandings, and oral agreements had between the appellant and officers of the respondent prior to the execution of the lease. There is no allegation of fraud, accident, or mistake in the complaint. How, then, can the plaintiff introduce evidence to show the understandings and agreements of the parties which led up to and culminated in the making of the lease? Clearly, in the absence of proper allegations, such evidence would be immaterial and incompetent, for the anterior proceedings between the parties were merged in the written instrument, which is complete in itself, and must speak for itself. It is executed by both parties, and does not require the aid of extrinsic evidence to comprehend its terms. Nor can such evidence be admitted to add to or vary the terms of the instrument in the absence of fraud or mistake. In Kain v. Old, 2 Barn. & C. 627, Chief Justice Abbott said: "Where the whole matter passes in parol, all that passes may sometimes be taken together as forming part of the contract, though not always, because matter talked of at the commencement of a bargain, may be excluded by the language used at its termination. But if the contract be in the end reduced into writing, nothing which is not found in the writing can be considered as a part of the contract." Benj. Sales, § 621; Mast v. Pearce, 58 Iowa, 579, 8 N. W. 632, and 12 N. W. 597; Baker v. Morehouse (Mich.) 12 N. W. 170; Johnson v. Walter, 60 Iowa, 315, 14 N. W. 325. It is further claimed by counsel for appellant that the court failed to find on all the issues, and this is insisted upon as error. It is evident, as appears from the record, that the finding of further facts was immaterial for, if they had been found, they would necessarily have been prejudicial to the appellant. The facts found show that there was no breach of the covenant of the lease by the respondent, and this rendered further findings unnecessary. Even on material issues, a failure to find facts is not reversible error if, when found, they must necessarily have been adverse to the appellant, and when those already found are sufficient to support the judgment. Hutchings v. Castle, 48 Cal. 152; People v. Center, 66 Cal. 551, 5 Pac. 263, and 6 Pac. 481; Knowles v. Seale, 64 Cal. 377, 1 Pac. 159. There is no pretense that Weaver, the successful claimant of the water from the springs in question, derived his title thereto from the respondent. It is shown that he was the original appropriator, and that the respondent never did have any title to the water. Nor is there any contention that the respondent, or any one by, through, or under it. has asserted any claim, or caused any disturbance to the title or possession of appellant. We are of the opinion that there is no material error in the record. The judgment is affirmed. MERRITT, C. J., and SMITH, J., concur (10 Utah. TURNER v. UTAH TITLE INSURANCE & 1. In an action to recover on certificates of deposit alleged to have been assigned plaintiff by deceased, where the complaint alleges and the assignment recites a consideration of $1,000, and the assignment is attacked as fraudulent testimony, that deccased said she intended plain tiff to have all her property when she died is incompetent. 2. Judgment for plaintiff in an action to recover on certificates of deposit alleged to have been assigned plaintiff will be reversed where the court failed to find whether there was a consideration for the assignment. 3. An assignment of property will be set aside where, at the time it was executed, the assignor was in a dying condition, bereft of sight and of speech, and where the consideration therefor was less than one-twelfth of the value of the property assigned. Appeal from district court, Salt Lake county; before Justice C. S. Zane. Action by Martha Turner against the Utah Title Insurance & Trust Company to recover on certain certificates of deposit. Frank Kimball intervened, and from a judgment for plaintiff he appeals. Reversed. E. W. Tatlock and W. C. Hall, for appellant. McDowall & Lyler, for respondent. MERRITT, C. J. This action was brought by Martha Turner, respondent, to recover from defendant the sum of $2,500 upon three certificates of deposit issued by defendant to Minnie Barton, bearing date September 9, 1891,-two for $1,000 each, the other for $500, all bearing interest from date at 5 per cent. per annum, and payable to the order of said Barton six months after date; also another certificate of deposit between the same parties for $500, dated October 19, 1891, with like interest, payable three months from date; also another certificate of deposit between the same parties for $1,000, dated November 16, 1891, with like interest, payable six months after date; and also for a balance of $36.67, upon deposit with defendant to the credit of said Barton. The respondent bases her right of recovery upon an assignment which she claims was made to her by Minnie Barton, February 20, 1892. The consideration expressed in the assignment is $1,000, United States gold coin, in hand paid by Martha Turner to Minnie Barton, for which it is stated in the assignment, and claimed by the respondent, Minnie Barton sold, assigned, and transferred to respondent not only the said certificates of deposit, and deposit of credit, but $2,500 cash on deposit with the Union National Bank, and $3,350 on deposit with Wells, Fargo & Co. to the credit of said Barton, and also all her household goods, etc., which were afterwards sold by respondent for $2,500. The defendant answered the plaintiff's and intervener's complaints, and by cross complaint set up the adverse claims of plaintiff and intervener, to the subjectmatter of this action, and upon hearing of the cross complaint, taken as confessed by the plaintiff and intervener, on the 25th day of June, 1892, it was ordered, adjudged, and decreed by the court below that the defendant pay into court the sum of $4,170, being the full amount due upon the certificates of deposit and on the open account, and to be held by the clerk to await the final deter mination of the action as to the ownership thereof. Minnie Barton died intestate on said 20th of February, within one hour and a half after it is claimed she executed the assignment. On the 6th day of May, 1892, Clarence W. Hall was appointed special administrator of the estate of said deceased, and on that day qualified as such, and on the 20th day of April, 1893, by order and leave of court, filed his amended complaint of intervention. alleging, among other things, the death, intestacy of the deceased, and that she left estate situated in the city and county of Salt Lake, Utah T., consisting of said certificates of deposit and said deposit of cash with the defendant; also the cash on de posit with Wells, Fargo & Co., and the Union National Bank, and the household goods, etc.; and that defendants said Wells, Fargo & Co. and the Union National Bank were then doing a banking business in Salt Lake City. He claims title and possession of this property, and attacks the validity of, and as grounds for canceling this assignment alleges that, at the date of the alleged execution of the assignment, the deceased was seriously and dangerously sick, greatly prostrated in body, and weak in mind, could scarcely see, and could not speak, and could only sign by a mark, and died within an hour and a half after she had so signed the assignment, and that she had no attorney or other person present representing her in the transaction, and that she was not at the time able or competent to make a binding or valid contract (that is, from her physical and mental condition, she was incapable of understanding the nature and effect of the transaction), and that the assignment was obtained by solicitation, fraud, and undue influence of the plaintiff, and that the assignment was without any consideration whatever, and therefore void, and of no binding force or effect. These allegations of the intervener were controverted by the plaintiff, and, to the contrary, she averred that the deceased was of sound mind and understanding, and that for a good and valuable consideration-among other things, for services before then rendered by plaintiff to the deceased in taking care of, nursing, and maintaining her-the deceased, by assignment, sold, assigned, transferred, and delivered to plaintiff all of the aforesaid money and property. The court below found for plaintiff (respondent here), whereupon the intervener appealed to this court. In the meantime, the intervener Hall having died, the present intervener, Kimball, having been appointed administrator in his place, was substituted as intervener, and as such prosecutes this appeal. The question for determination is whether the deceased, at the time she executed the assignment in question, possessed sufficient intelligence to understand fully the nature and effect of the transaction; or if, in fact, the assignment was ever made, and, if so, whether the assignment was executed under such circumstances as that it ought to be upheld, or as would justify the interference of equity for its cancellation. Allore v. Jewell, 94 U. S. 508. The plaintiff must recover, if at all, upon the assignment. From a careful examination of the testimony it must be admitted that the deceased, at the time it is claimed she executed the assignment, was and had been suffering for a long time from, and greatly prostrated with, her last sickness, viz. syphilitic degeneration of the kidneys, which frequently produces, and is one of the most common causes of, brain trouble. Her face was very thin, her eyes much sunken, and she was unable to converse. Could only respond by a nod or shake of the head, or at most with a faint whispered "Yes" or "No." Was totally blind in one eye, and so much so in the other that she could not see to read or write. To within a month of her death she could only recognize her acquaintances when they came up close by her, and her vision would be improved a little with a very strong glass, but not used during the last six weeks of her illness. She was in bed, dying of exhaustion, near the point of death, and bereft of speech or sight, the usual methods of communication. Great haste was manifested by those around the deceased, especially the plaintiff and the witness Helen Smith, to complete the affair before death should end it. It sufficiently appears from the evidence that the deceased was educated, and, when in health, a woman of fair business capacity. Also that the plaintiff and Helen Smith were crafty, avaricious, and selfish, and that no one was present at the time to counsel or advise with, or did counsel or advise, the deceased as to her rights, or act for her in the transaction. That she took no voluntary part whatever in the formation of the assignment is beyond question.. She simply allowed her hand to involuntarily make the marks when guided by another person. The attorney who drew the assignment testified that a messenger informed him that his services were needed at the house of deceased to draw her will. Before leaving his office he drew the formal parts of a will, and arrived at her house about 3 o'clock p. m. He was met at the door by Helen Smith, who took principal charge of and informed him that they did not wish a will; that they wanted a bill of sale, or something of that sort, to turn over everything that "Minnie" had to Martha Turner. She gave the instructions in general to the attorney, with an occasional direction to him from Martha Turner, who enumerated some of the articles to be embraced in the assignment. From these the attorney, without ever having seen the deceased, drew up the assignment, placing the consideration, as directed by them, at $1,000 gold coin in cash, paid the deceased by Martha Turner; and at about 4 o'clock p. m. he was hurriedly ush ered for the first time into the presence of the deceased. The attorney also testified that they desired him to come into the bedroom of Minnie Barton quickly; that she was liable to die at any moment; that the attending physician was present; that they were ready for "Minnie" to execute the assignment. The attorney read the instrument twice to the deceased, and thought, though he was not positive, that she nodded her head in assent. Then she was propped up in bed. He placed the instrument before her, gave her the pen, placed it within her fingers, and guided her hand in making the marks. At this time certain other assignments were written in the bank pass books of the deceased for her to sign, if she should recover from the exhaustion of this effort. She did not rally, but continued to sink, and shortly thereafter died. The attorney further testified that, irrespective of the signing, the deceased took no voluntary action, and gave no direction or instruction whatever in the transaction. Helen Smith testified that she had no authority from, nor did the deceased give her any instructions whatever; that the part she took, and the instructions and directions she gave to the attorney, were voluntary on her part, and without authority from the deceased, and were simply based upon previous conversations, which she claimed to have had with the deceased about a year previous, as to what she intended to do with her property when she died. The intervener objected to this and like declarations, assigning the following errors: "The court erred in permitting the witness Jennie Burke to answer the following question: 'State whether or not you ever heard Miss Barton, the deceased. say anything in reference to the disposition of her property,'-against the objection and exception of the intervener that the question was leading, incompetent, hearsay, and immaterial; and also in permitting said witness to testify as to what the deceased had said to her in reference to giving her property to the plaintiff, as also being hearsay, incompetent, and immaterial, and against the objection and exceptions of the intervener." And that, second: "The court erred in admitting the evidence of Martha Turner, the plaintiff, and also the evidence of the witnesses Helen Smith, Jennie Burke, and A. Alexander, as to the statements alleged by them to have been made to each of them respectively by Minnie Barton, as to what disposition she intended to make of her property in the case of her death; or that she said to them respectively that if anything happened to her she wanted all of her property to go to Martha Turner; that at her death she intended to give her property to Martha Turner,— against the objection and exception of the intervener; that said evidence was irrelevant and immaterial, and also being an attempt to prove a consideration for the alleged assignment different from that stated in the as signment and in plaintiff's complaint." These objections should have been sustained. It was error to admit such testimony, because it was irrelevant and immaterial, and brought about a variance between the proof and pleadings, and was an attempted proof of a different consideration than that stated in the assignment or alleged in the pleadings. In general, where no consideration at all is expressed in a deed, a party may prove the actual consideration to support it. And where a consideration is expressed a party may prove any other actual consideration, if not wholly inconsistent with that stated. To this general rule there is the limitation that, where the consideration expressed in a deed is impeached on account of fraud, the party claiming under the conveyance cannot sustain it by proving another consideration different from that stated. If a pecuniary consideration is stated in the deed, and it is impeached, the party cannot rely on the consideration of blood, love, or affection. Kerr, Fraud & M. pp. 191, 192; Hartopp v. Hartopp, 17 Ves. 184-192; Clarkson v. Hanway, 2 P. Wms.. 203; Willan v. Willan, 2 Dow. 274; cases cited, notes, pp. 433, 434, 2 Pom. Eq. Jur. The intervener excepted to the findings of fact as a whole, and to each of them separately, as being contrary to and not supported by the evidence, and because they did not contain, and the court failed to find, whether there was in fact a consideration for the assignment, and made the same objections and assignment of errors to the findings of fact in the first and second assignment of errors. The failure of the court below to find as to the fact of the consideration for the assignment was reversible error. Marsters v. Lash, 61 Cal. 623. No money or any other thing was given by plaintiff to the deceased. The board and lodging given by plaintiff to deceased was a gratuity; therefore the assignment was without a consideration, and of no binding force or effect whatever. Scully v. Scully's Ex'r, 28 Iowa, 550; Allen v. Bryson, 67 Iowa, 596, 25 N. W. 820. And, again, in view of the circumstances stated, should there have been the consideration claimed and attempted to have been proven by respondent, we are not satisfied that the deceased was, at the time she executed the assignment, capable of comprehending fully the nature and effect of the transaction. She was in a state of extreme mental and physical weakness, sick, dying, at the point of death, bereft of speech and sight. If not disqualified, she was unfitted to attend to business of such importance as the disposition of her entire property, of the value of not less than $12,335, for the insignificant sum of $1,000, or for the board or lodging of deceased, as claimed by respondent. Certain it is that in negotiating for the disposition of the property she stood on no terms of equality with the plaintiff, the deceased being alone, with no attorney or other person representing her in making the assignment. It is not necessary, in order to secure the aid of equity, to prove that the deceased was at the time insane, or in such a state of mental imbecility as to render her entirely incapable of executing a valid deed. It is sufficient to show that from her sickness and infirmities she was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the conveyance. From these circumstances imposition or undue influence will be inferred. Allore v. Jewell, 94 U. S. 510, 511; Harding v. Handy, 11 Wheat. 125; Kempson v. Ashbee, 10 Ch. App. 15. In the case of Harding v. Wheaton, 2 Mason, 378, Fed. Cas. No. 6,051, a conveyance executed by one to his son-in-law for a nominal consideration, and upon a verbal arrangement that it should be considered as a trust for the maintenance of the grantor, and after his death for the benefit of his heirs, was, after his death, set aside, except as security for actual advances and charges, upon application of his heirs, on the ground that it was obtained from him when his mind was enfeebled by age and other causes. Mr. Justice Story, in deciding the case, said: "Extreme weakness will raise almost necessary presumption of imposition, even when it stops short of legal incapacity." In the case of Allore v. Jewell, 94 U. S. 511, Mr. Justice Field, in delivering the opinion, said: "The same doctrine is announced in adjudged cases almost without number, and it may be stated as settled law that whenever there is great weakness of mind in a person executing a conveyance of property, arising from age, sickness, or any other cause, though not amounting to absolute dis qualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere, and set the conveyance aside." And the present case comes directly within this principle. Judgment and decree reversed, and cause remanded, with instructions to the court below to enter a judgment and decree in favor of the intervener, canceling the assignment, delivering the same and the certificates of deposit to the intervener, and a direction to the clerk of the court to pay over the money in his hands as the custodian of the court to the intervener. |